Attempted Closure and Reform
Attempted Closure and Reform

D During his 2008 presidential campaign, President Barack Obama began advocating the closure of the Guantanamo Bay detention facility and holding civilian trials for detainees. Soon after his November 2008 election, reports revealed that Obama’s advisers had already begun working on a legal strategy to try large numbers of Guantanamo Bay detainees in federal courts. During the first week of his term in January 2009, Obama took steps to close the detention facility and directed military prosecutors to pursue a 120-day continuance in military commission proceedings against five alleged 9/11 co-conspirators, including Khalid Sheikh Mohammad. Later that week, Obama issued an executive order that called for the closure of the Guantanamo Bay detention facilities by January 22, 2010. The orders also instructed Defense Secretary Robert Gates to immediately halt military commission proceedings pending a comprehensive review of all Guantanamo detentions under the supervision of the Attorney General.

In September 2009, a US military judge granted the government’s request for a 60-day continuance in the military trial of five accused 9/11 conspirators: Khalid Sheikh Mohammed, Ramzi Bin Al Shibh, Walid Bin Attash, Ali Abdul-Aziz Ali and Mustafa Ahmed Al Hawsawi. However, it was the administration’s third continuance in the case — having been granted 120-day continuances in both January 2009 and May 2009. The continuances were a strategy to provide the Obama administration more time to reach a decision regarding the novel issue of to what law suspected terrorists captured in the War on Terror should be subject. Essentially, the debate between the legitimacy of the military commissions and federal courts is a disagreement over proper venue. Obama signed the Department of Homeland Security Appropriations Act of 2010 in October 2009, allowing for the transfer of Guantanamo detainees to the US for prosecution.

There was initial congressional opposition to Obama’s plan to close the Guantanamo facilities. In November 2009, the US Senate voted down an amendment to the Hiring Incentives to Restore Employment Act that would have prevented Guantanamo detainees accused of involvement in 9/11 from being tried in federal courts. Obama defended his stance that detainees charged with violating US criminal law should be tried in federal courts “whenever feasible” by citing the earlier convictions of Ramzi Yousef, Ali Saleh Kahlah al-Marri, and 9/11 conspirator Zacarias Moussaoui in civilian courts.

Facing mounting pressure to meet the administration’s self-assigned deadline of January 22, 2010, Attorney General Eric Holder officially announced in November 2009 that the government would pursue federal charges against Khalid Sheikh Mohammed and the four other accused 9/11 conspirators detained at Guantanamo in the US District Court for the Southern District of New York.

Following the announcement that Guantanamo would cease operation in January 2010, there was an immediate push to patriate many of the detainees to willing countries to facilitate the closure. Such efforts had been relatively unsuccessful in previous years. However, this time the move received support from the UN Special Rapporteur on torture, Manfred Nowak. Countries including Spain, France, Austria, Tunisia, Portugal, Ireland, Hungary, Germany, Italy, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan, Bermuda, Yemen, Qatar, El Salvador, Albania and Kuwait accepted released detainees. In July 2012, Kuwait requested that two Kuwaiti detainees be transferred from the facility to Kuwait. That same day, the US dropped all charges against one of the detainees, Faiz al Kandari, without explanation. In August 2012, Egypt requested that the last of its citizens held at Guantanamo, Tarek al-Sawah, be released after 11 years in detention without charges or a trial.

Not all former detainees have enjoyed freedom or full repatriation since being transferred from Guantanamo. Many have been prosecuted following their departure from the detention facilities. Algeria has been especially active in prosecuting former Guantanamo detainees given the high numbers of Algerian nationals who are detainees.

However, the Obama administration missed its January 2010 deadline for the closure of Guantanamo Bay. Following the 2010 mid-term congressional election, Congress effectively halted plans to immediately close Guantanamo Bay. Both the Senate and the House of Representatives giving final approval to a defense spending bill which blocked Guantanamo detainees from being transferred to the US. In January 2011, the closure of Guantanamo was further delayed when Obama signed the Ike Skelton National Defense Authorization Act of 2011, which barred the use of funds to transfer Guantanamo detainees into the US. In April 2011, the Obama administration abandoned its plan to try the accused 9/11 conspirators in federal courts as Holder announced that the defendants would be tried before a military commission. In June 2012, Attorney General Holder confirmed that the Obama administration had abandoned immediate plans to transfer detainees to the US. While under oath during a Senate Judiciary Committee hearing, Holder stated that the administration had abandoned a previous plan to purchase an Illinois prison facility and transfer many detainees there. A report [PDF] released in November 2012 by the Government Accountability Office asserted that US prisons could safely absorb the 166 detainees held at that time in the event that the facility closed and all detainees were brought to the US.

JURIST Guest Columnist Jonathan Hafetz argued in April 2011 that the failure to close Guantanamo Bay is an unwelcome step in justifying arbitrary detention and torture:

The irony is that the United States is much further from closing Guantanamo now than it was after Obama’s post-inaugural pledge. Congress deserves much of the blame. On top of previous legislation obstructing detainee resettlement, Congress has now barred the use of military funds to bring detainees to trial in the United States. This measure not only ensured the demise of the administration’s plan to prosecute [Khalid Sheikh Mohammed (KSM)] in federal court. It also signaled the degree to which a vital tool in fighting terrorism &#151l; criminal trials — could be sacrificed on the altar of political expediency. As Attorney General Eric Holder acknowledged in announcing the KSM-reversal, both America’s security and values are best served by federal prosecutions of suspected terrorists.

Obama, however, bears responsibility as well. The administration did not lay the necessary political groundwork for the federal prosecution of KSM and his co-defendants, failing, for example, to enlist the key powerbrokers in New York, where the trial was to have taken place. More generally, the president never capitalized on his post-election momentum to operationalize his promise to close Guantanamo. Instead, he created a multi-agency task force to conduct a year-long study of detainee cases. Without effective leadership from the White House, a fierce backlash filled the political vacuum. Before long, the tide had turned, and what had once been a political challenge became a political impossibility.

However, JURIST Guest Columnist Andrew Puglia Levy, a Washington, DC attorney, who served in the Department of Homeland Security from 2006 to 2009, argued in June 2009 that there are significant risks to bringing some Guantanamo detainees to the US for trial because the Obama administration’s legal options for holding them here are limited and problematic:

Although trying detainees in Article III courts is President Obama’s prerogative, and although doing so may be the appropriate route for some cases, this strategy must acknowledge the real risk that alleged terrorists could be acquitted or receive short sentences. …

It is impossible to predict with certainty the result of any trial, let alone those involving such novel circumstances. Many of the detainees at Guantanamo Bay were captured in connection with combat overseas. For those whom the Administration decides it can try, their cases therefore come with the myriad challenges associated with turning battlefield encounters into successful federal cases, including the admissibility and availability of evidence and ensuring the protection of classified sources and methods. Widespread allegations of detainee mistreatment as well as… released Justice Department memos, which set forth the legal justification for enhanced interrogation techniques, only make these cases more vulnerable. They provide traction for defense arguments that detainee statements were coerced, and they could undermine jurors’ overall confidence in the government’s case. … Military commissions are one viable alternative to trials in federal court, in part because they can more easily incorporate procedural and evidentiary rules to lessen some of these challenges.

In April 2012 the Department of Defense referred the charges against Mohammed and the four other accused conspirators to a military tribunal being held at Guanatamo Bay. Their initial hearing was scheduled by Chief Gantanamo Bay Judge, Army Col. James Pohl in April 2012 and took place on May 5, 2012. The arraignment hearings stretched over 13-hours due to disruptions and actions of protest from the five suspects. Mohammed, along with Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi, face charges of conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft and terrorism. The men could face the death penalty if convicted. The trials of the accused plotters was further complicated in October 2012, when a judge for the military ruled that the detainees could elect to not attend their own trials, despite the potential disadvantages of such action.

The Guantanamo Bay detention facility remains open and still houses over 100 detainees. Groups such as the ACLU continue to urge President Obama to close the facility, though no significant actions have been taken regarding its closure. Due to the complex legal issues surrounding the status and rights of the detainees, the intense controversy regarding the appropriate venue for their prosecution, and the political controversy that pervades the issue, the Guantanamo Bay detention facility remains open.

In March 2013, detainee defense lawyers claimed that more than 30 prisoners had begun a hunger strike in protest of alleged mistreatment, and applied for emergency intervention from the US District Court for the District of Columbia, alleging that guards were depriving Yemeni prisoner Musa’ab Omar al-Madhwani of drinking water and sufficient clothing in order to undermine the hunger strike. In April 2013, the US military confirmed that over half of the detainees at Guantanamo were participating in the hunger strike.